*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-30250

Summary Calendar

_____________________

LOUIS MARKS,

Plaintiff-Appellant,

v.

R J REYNOLDS TOBACCO COMPANY, ET AL,

Defendants,

R J REYNOLDS TOBACCO COMPANY; PHILLIP MORRIS 

INCORPORATED,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(93-CV-1496)

_________________________________________________________________

October 8, 1996

Before KING, GARWOOD, and DENNIS, Circuit Judges.

PER CURIAM:*

 Louis Marks (“Marks”) brought suit against R.J. Reynolds

Tobacco Company (“R.J. Reynolds”) and Phillip Morris Incorporated

(“Phillip Morris”), claiming appellees’ cigarettes caused his
2

wife Verna Marks (“Mrs. Marks”) to die of lung cancer. The trial

court granted R.J. Reynolds and Phillip Morris’s motion for
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 partial summary judgment. Finding no error, we affirm.

I. BACKGROUND

Marks’s suit alleges that his wife, Mrs. Marks, was

diagnosed with cancer on July 10, 1991 and died on November 3,

1991. Mrs. Marks apparently smoked cigarettes from approximately

1952 to 1980. Marks asserts that Mrs. Marks’s cancer resulted

from smoking appellees’ cigarettes.

Marks’s complaint alleged six claims. R.J. Reynolds and

Phillip Morris moved for summary judgment on four of the six

claims, arguing they were eliminated by the Louisiana Products

Liability Act (“LPLA”). The district court agreed, granted the

motion, and entered judgment on those claims under FED. R. CIV. P.

54(b). Marks appeals, arguing that, contrary to this court’s

decision in Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524 (5th

Cir. 1995), in the case of a long-term exposure to an alleged

carcinogen, the time of the exposure, not the date at which the

cancer manifests itself, should be considered to establish the

accrual of the claimant’s cause of action. Marks also argues

that there is an unresolved issue of material fact because Mrs.

Marks “necessarily” was damaged by the cigarettes prior to the

1988 effect date of the LPLA and thus, meets the criteria set

forth in Brown for maintaining his cause of action. 

II. DISCUSSION

A. STANDARD OF REVIEW
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The entry of summary judgment is mandated if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with any affidavits, show that there is no genuine issue

of material fact and that the movant is entitled to judgment as a

matter of law. FED. R. CIV. P. 56. Thus, the moving party must

demonstrate the absence of a genuine issue of material fact. 

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 

If the movant meets this burden, the nonmovant must go beyond the

pleadings and designate specific facts showing a genuine fact

issue for trial. Id. Factual controversies are resolved in

favor of the nonmoving party, but only when there is an actual

controversy. Id.

B. NO EXPOSURE THEORY

Marks argues that the time of exposure should be the

determining factor in establishing the accrual of a claimant’s

cause of action under the LPLA because it is impossible to

determine the exact point at which both damage and wrongful

conduct coincide. This is the so-called “exposure theory.” We

explicitly rejected the exposure theory in Brown, finding that

although an accrual test might at times be difficult to apply,

“[t]he LPLA contains no language suggesting that the exposure

rule or any other rule, other than the general rule [that focuses

on the date the cause of action accrues], applies.” Brown v.

R.J. Reynolds Tobacco Co., 52 F.3d 524, 527, 530 (5th Cir. 1995).
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A panel of this court may not overrule the decision of a

prior panel in the absence of an en banc reconsideration or a

superseding decision of the Supreme Court or, in a diversity

case, subsequent state court decisions that are clearly contrary

to our prior decision. Floors Unlimited, Inc. v. Fieldcrest

Cannon, Inc., 55 F.3d 181, 185 (5th Cir. 1995); Pruitt v. Levi

Strauss & Co., 932 F.2d 458 (5th Cir. 1991). As there has been

no intervening law contradicting Brown, this panel may not

overrule it, and Marks’s assertion of the exposure theory must be

rejected. Thus, summary judgment on this basis was proper. 

C. NO FACT ISSUES

Marks asserts, in the alternative, that even if we do not

overrule Brown, summary judgment was improper because there is a

genuine issue of material fact under the standards set forth in

Brown. Brown concludes that although the LPLA eliminated certain

causes of action, a plaintiff could proceed under those theories

if the plaintiff showed that the cause of action accrued before

the effective date of the LPLA, September 1, 1988. Brown, 52

F.3d at 527, 530. However, summary judgment is proper if the

plaintiff “produced no evidence that he suffered damages or

bodily injury, latent or otherwise, before September 1, 1988.” 

Id. at 527. Thus, the key factor in our resolution of this case

is evidence of damages or bodily injury.
 

1 In his response to R.J. Reynolds and Phillip Morris’s

motion for summary judgment, Marks attached two letters from his

experts. Each letter indicates the author’s opinion that smoking

exposure caused Mrs. Marks’s cancer “within a reasonable degree

of medical certainty.” These letters were not sworn and thus are

not competent summary judgment evidence. See FED. R. CIV. P.

56(e); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547,

549 (5th Cir. 1987).

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Marks claims that because “[i]t is not contested for the

purposes of this motion that cigarettes caused Mrs. Mark’s [sic]

cancer . . . . [and] that Mrs. Marks had stopped smoking eight

years before the LPLA[,] [i]t necessarily follows that the

cigarettes caused either damage or injury to the lungs before the

1988 LPLA effective date.” Marks cites no medical or scientific

summary judgment evidence for this proposition, but rests this

conclusion on “logic.”1 Conclusory allegations and

unsubstantiated assertions are not competent summary judgment

evidence. Light, 37 F.3d at 1075. Furthermore, Marks’s own

expert witnesses, presented as R.J. Reynolds and Phillip Morris’s

summary judgment evidence, disagree with this logic. According

to the summary judgment evidence record, Marks’s experts stated

in deposition testimony that rates of cancer progression vary

from individual to individual and that it is impossible to

determine when any specific person’s cancer arose. The evidence

further showed that Mrs. Marks had never even been diagnosed with

lung cancer. Mrs. Marks is just like the plaintiff in Brown: 

both were long-time smokers whose cancer was diagnosed after the
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LPLA’s effective date. Brown, 52 F.3d at 523. In Brown, we

rejected any inference based solely on the timing of smoking by

affirming the grant of summary judgment on the basis that Brown

had not presented any evidence of injury or bodily damage prior

to the diagnosis of his cancer, which was after the LPLA’s

effective date. See id. at 527. The relevant facts in this case

are identical to those in Brown. Thus, the trial court’s grant

of partial summary judgment was proper.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

granting of partial summary judgment.